V 




































•4 



Hon. JOHN A. COLLIER, 

■ * 7 


IN REFERENCE TO THE 



CALIFORNIA.. 


NEW YORK: 

WYNKOOP, HALLENBECK & THOMAS, BOOK AND JOB PRINTERS, 
No. 113 FULTON STREET, AND 48 ANN STREET. 





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NEW ALMADEN MINE. 


-- 

To Messrs. Duncan, Sherman & Co., William S. Wetmore, 

John Cryder, G. G. Hobson, and their Associates: 

Gentlemen :—My attention has been called to a commu¬ 
nication, recently published in the New York Times , and 
other leading newspapers in that city, bearing the signatures 
of the highly respectable and prominent names of Hon. 
Reverdy Johnson, J. P. Benjamin, J. J. Crittenden and John 
A. Rockwell, and addressed to Messrs. Goodhue & Co., 
agents of Messrs. Bolton, Barron & Co., in which these emi¬ 
nent counsel certify that they have made a careful examin¬ 
ation of the title to the new Almaden Mine, and express 
their opinion, in very decided terms, in favor of the validity 
of the title of the Almaden Company to this mine under 
Andreas Castillero. 

The counsel do not, in this communication, allude to any 
adverse claim, although they are not all, as I shall show, 
strangers to the claim of Charles Fossat, who claims under a 
prior grant from the Mexican authorities to Justo Larios. 

As you have lately become interested in this valuable 
property either on your own account or as trustees for 
others, having first been furnished with the well considered 
and carefully prepared opinion of Hon. Wm. Kent , F. B. 



4 


Cutting , e/. C. Bancroft Davis and John A. Collier , tliat the 
title to the lands, on which the mine is situated, is vested in 
Henry Laurencel and James Eldredge , who hold, under deeds 
directly from Charles Fossat, and as you and those whom 
you represent, some of whom have advanced money and have 
contemplated making further advances upon the faith and 
security of that title, will very naturally have felt some soli¬ 
citude, and perhaps have been startled at the adverse opin¬ 
ions of the high names enlisted on behalf of Messrs. Bolton, 
Barron & Co., I take the liberty of addressing you on this 
subject. 

I should not presume to oppose my own unsupported 
opinion against the opinions of the eminent counsel, whose 
services Messrs Bolton, Barron & Co. have had the good 
fortune, as they have the abundant means to enable them, to 
procure; but I think it will be in my power to satisfy you 
that their opinion is in conflict with the opinions and deci¬ 
sions of the Supreme Court of the United States, and the 
United States Courts in California, in relation to this very title, 
and I hope to be able so to state the case, that it may be 
clearly comprehended by all. 

Under the treaty of Guadalupe Hidalgo, between the United 
States and Mexico, by which the territory of Upper California, 
now comprising the State of California, was ceded to the 
United States, it was provided, in the 8th article, that “ Mexi¬ 
cans now established in territories previously belonging to 
Mexico, and which remain for the future within the limits 
of the United States, as defined by the present treaty, shall 
be free to continue where they now reside or to remove at 
any time to the Mexican Republic, retaining the property 


5 


which they possess in the said territories, or disposing there¬ 
of, and removing the proceeds wherever they please,” &c. 

“Property of every kind, now belonging to Mexicans not 
established there, shall be inviolably respected. The pre¬ 
sent owners, and the heirs of these and all Mexicans who 
may hereafter acquire said property by contract, shall enjoy, 
with respect to it, guaranties equally ample, as if the same 
belonged to citizens of the United States.” 

In the annual message of President Taylor to Congress, of 
December, 1849, and in view of this treaty stipulation with 
Mexico, he recommended, “ that commissions be organized, 
by Congress, to examine and decide upon the validity of the 
present subsisting land titles in California and New Mexico.” 

In the report of Hon. Thomas Ewing, then Secretary of 
the Interior, accompanying this message, and who was more¬ 
over a very able and experienced lawyer, itis said as follows: 
“ Many of the older grants in that territory, of considerable 
extent, have been resumed by the sovereign authority, and 
are now held under new grants, which require examination. 
Many important, points are claimed under very recent grants 
of a questionable character , and but a part of the public 
records were , at the time of our last advices , in the possession , 
or within the .knowledge of the proper authorit ies .” 

“ It is understood that a few of the larger grants cover, to 
some extent, the mines of gold and quicksilver. By the 
laws of Spain, these mines did not pass by a grant of the 
land, but remained in the Crown, subject to be disposed of 
by such ordinances and regulations as might be from time 

to time adopted.” 

“ The right to the mines of precious metals, which, by the 


6 


laws of Spain, remained in tire Crown, is believed to have 
been also retained by Mexico while she was sovereign of the 
territory, and to have passed by her transfer to the United 
States. It is a right of the sovereign in the soil, as perfect 
as if it had been reserved in the body of the grant, and it 
will rest with Congress to determine whether, in those cases 
where lands duly granted contain gold, this right shall be 
asserted or relinquished. If relinquished, it will require an 
express law to effect the object.” “It is to be observed that 
the regulation, permitting the acquisition of a right in the 
mines by registry, or by denouncement , was simply a mode 
of exercising, by the ‘ Sovereign, the proprietary right which 
he had in the treasure, as it lay in and was connected with 
the soilconsequently, whenever that right was transferred 
by the transfer of the eminent domain, the mode adopted for 
its exercise ceased to be legal for the same reason that the 
Spanish mode of disposing of the public lands, in the first 
instance, ceased to be legal after the transfer of the sove¬ 
reignty. Thus, it appears that the deposits of gold, wherever 
found in the territory, are the property of the United States.” 

“The property of the United States, in the mines of 
quicksilver , derived from Spain through Mexico, with the 
eminent domain, is, as I have shown, the same as that to the 
gold, already considered. Indeed, the laws of Spain asserted 
more sternly, and guarded more strictly, the rights of the 
Crown to that metal than to gold and silver. This arose 
from the scarcity of quicksilver,” &c. 

“ The deposit of quicksilver, known to exist in California, 
is a sulphuret of mercury or native cinnabar.” 

Speaking of this very mine, Mr. Ewing says: 


i 


“ So much of the mine as has been traced is situated on a 
ranch to which the title is probably valid ; and, since the United 
States took possession of the country , an attempt has been 
made to acquire title to the mine by denouncement. This 
proceeding is, for the reasons that I have already given 1 
invalid . It therefore remains for Congress to determine 
whether they will relinquish or assert the title of the United 
States in this mine.” — Report of Hon. Thomas Ewing , 
Secretary of the Interior , December 3d, 1849. 

The right of the Crown to all mines and minerals of gold, 
silver, and quicksilver, under the laws of Mexico, is also 
clearly shown and established in a very able compilation of 
Spanish and Mexican law, in relation to mines and titles to 
real estate, in force in California, &c., when annexed, “ by 
John A. Rockwell, Counsellor at lawf published in 1851, 
which principle, the author, now one of the able counsel for 
Bolton, Barrow k Co., will probably not controvert or repm 
diate. 

One of the royal ordinances, recited by Mr. Eockwell, 
says : “ We reclaim, resume, and incorporate in ourselves, 

and in our Crown and patrimony, all mines of gold, silver 
and quicksilver” (see Rockwelbs Spanish and Mexican 
laws, pages 102, 10$, 114, 141). 

On the 30th March, 1851, Congress passed the act, ‘‘To 
ascertain and settle the private land claims in the State of 
California.” 

By this act, a commission is constituted for this purpose, 
to consist of three commissioners to be appointed by the 
President, with the advice and consent of the Senate. 


8 


It provides, tliat each and every person claiming lands in 
California, by virtue of any right or title derived from the 
Spanish or Mexican government, shall present the same to 
the Board of Commissioners, with such documentary evi¬ 
dence and testimony of witnesses, as the said claimant relies 
upon, in support of such claims ; and the Commissioners are 
required to examine the claim upon this evidence, and the 
evidence produced by the United States, and to certify their 
decision, with the reasons on which it is founded, to the 
District Attorney of the United States for that district. 

The claimant, or the District Attorney, therefore, may 
present their petition to the United States District Court in 
California to review and decide on the validity of such claim, 
with the right to the party against whom judgment is ren¬ 
dered to appeal to the Supreme Court of the United States. 

u All lands, the claims to which shall have been finally 
rejected or decided to be invalid, and all lands , the claims to 
which shall not have been presented to the said Commissioners 
within two years after the date of this act , shall be deemed , 
held, and considered a part of the public domain of the United 
States .” 

“For all claims finally confirmed, a patent shall issue to the 
claimant upon his presenting to the General Land Office an 
authentic certificate of such confirmation, and a plot or sur¬ 
vey of the land duly certified and approved by the Surveyor 
General of California.” But if the title to the lands is con¬ 
tested by any other person, he can proceed by petition before 
the District Judge, plainly and distinctly setting forth his title 
thereto; and the Judge has power to issue an injunction 
against suing out a patent until the claim is finally decided. 


9 


No authority or jurisdiction is given to these Commis¬ 
sioners to pass upon any claim to the mineral as distinct 
from the title to the lands. No valid or subsisting claim to 
the minerals under any Mexican grant is recognized or ad¬ 
mitted, as we have already seen by the above official com¬ 
munication to Congress, nor is any such right supposed to 
exist under the law and settled policy of Spain and Mexico 
at the date of the treaty. 

.Robert J. Walker, who is, or was, an adverse claimant 
and an itinerant litigant in relation to this mine, but whose 
opinion I do not cite as authority for the law of this case, 
except so far as he may be supported by the case he refers 
to, in the United States Court, of Fremont against the 
United States, (17 Howard R., 565), says, in the pamphlet he 
has published on this subject: “There could be no con¬ 
firmation of the mineral title, as the act of Congress only 
provides for the confirmation of land titles, and as a matter 
of course, the confirmation of a land title is a confirmation 
of the mineral title.” 

Independent of this, it will not be denied that the issuing 

of the patent without reservation (and the law contemplates 
no reservation) would pass the title to the mines. 

This brings me to consider the relative claims of the only 
two parties who have, or, under the limitations in this act, 
now can have any just pretence of title under Mexican 
grants; that is to say James Eldredge and Henry Laurencel , 
who hold by deed from Charles Fossat , who claim under 
the Justo Larios .Grant, and Andreas Castillero who also 
claims under an alleged Mexican Grant, and under whom 
Messrs. Bolton, Barron & Co, profess to derive their title. 


10 


THE CHARLES FOSSAT CLAIM UNDER THE JUSTO LARIOS 

GRANT. 

On the 13th September, 1852, Charles Fossat, in pursuance 
of the provisions of the act of 1851, presented his petition 
to the Board of Commissioners, for the confirmation of his 
title to the land in Santa Clara County, known as the “ Ca¬ 
nada de los Capitancillos,” which includes the New Almaden 
Mine; and upon a full hearing before the Commissioners, 
not only of the evidence offered by the claimant, but all the 
counter evidence adduced on the part of the United States 
and with the efficient aid of the adverse claimants on their 
behalf, the Board of Commissioners, on the 28th day of Feb¬ 
ruary, 1854, made a decree confirming to Fossat a portion of 
these lands described by metes and bounds, and as being 
“ The same formerly occupied by Justo Larios,” and as u con¬ 
taining three-fourths of a square league of land, a little more 
or less.” 

From this decree, the United States appealed to the Dis¬ 
trict Court of the United States for the Northern District 
of California. On the 17th August, 1857, a decree was 
made in that Court, held by Hon. Ogden Hoffman, United 
States District Judge, that the claim of Charles Fossat was 
a good and valid claim, and that the same was thereby 
confirmed. 

The United States appealed from this decree of the District 
Court, on the 19th August, 1857, to the Supreme Court of 
the Uuited States, and the cause was argued in that Court at 
the same term. The Court allowing it to be moved out of 
its regular order on the Calendar, and giving it a preference, 
on account of its public importance. 


11 


The argument of the case, and the whole care and charge 
of the interests of the United States in this litigation, might 
very safely, and, as the Supreme Court thought and expressed 
themselves, more properly have been intrusted to the pro¬ 
per law officers of the Government, the Attorney General 
and the United States District Attorney in California; but 
when the case was moved in the Supreme Court, printed 
briefs for the appellant, bearing the names of the Attorney 
General, J. Black, and Reverdy Johnson and John A. Rock - 
well (two of the learned counsel for Messrs. Bolton, Barron, 
& Co.), “ for appellant,” were presented to the Court, and 
Messrs. Johnson and Rockwell alone appeared, and proposed 
to argue the case on behalf of the United States. 

Whether the learned counsel were induced only by mere 
motives of patriotism, or by other considerations, to wage 
battle against the Fossat claims, under the flag of the 
<{ United States,” yet all will concede that they were formid¬ 
able adversaries, with or without the aid of the Attornev 

• w 

General. 

The Supreme Court, however, denied the right of the 
counsel of adverse claimants to appear, or of the Attorney 
General to put the conduct of the suit, or the interests of the 
United States, in their keeping, and required the attendance 
of the Attorney General, postponing the argument until he 
should appear in Court. When he did appear on the follow¬ 
ing day, the Court expressed their disapprobation, as to the 
course pursued, in very decided—I may say—severe terms, 
which I will not here undertake to give in detail, although I 
happened to be present, but will give the parties concerned 
the benefit of the milder, yet sufficiently decided reproof, as 


12 


modified in the final opinion of the Court. On the subse¬ 
quent day, in consequence of the alleged indisposition of 
the Attorney General, and at his request, the Court allowed 
the case to be argued by Mr. R. H. Gillet, the Assistant Attor¬ 
ney General, associated with one of the counsel of Messrs. 
Bolton, Barron & Co., which was done accordingly. 

The final judgement of the Supreme Court was, neverthe¬ 
less, in favor of the Fossat title, and its history, and the 
decision of the Court will sufficiently appear from the opin¬ 
ion of the Supreme Court, delivered by Mr. Justice Camp¬ 
bell, from which I proceed to quote. 

EXTRACTS FROM THE OPINION OF THE UNITED STATES SUPREME 
COURT IN CASE OF “UNITED STATES AGAINST FOSSAT.” 

(This case is reported in 20th Howard Reports, 413.) 

“The appellee (Charles Fossat) presented to the Board 
of Commissioners, appointed under the act of Congress of 
the 3d March, 1851 (9 Statutes at large, 632, ch. 41), to 
settle private land claims in California, a claim for three- 
fourths of a league of land, known as part of the 1 Canada 
de los Capitancillos.’ He produced to the Board satisfactory 
evidence of a grant from the Governor of California, bearing 
date in 1842, to Justo Larios, for a parcel of land having 
that name ; also that Larios had occupied, improved and cul¬ 
tivated it conformably to the condition of the grant; that 
he had sold it to a person from whom the appellee deduced 
his title to an undivided three-fourths interest; and that his 
share had been set apart to him by valid conveyance. The 
Board pronounced in favor of the validity of the grant; 
rendered a decree of confirmation in favor of the claimant 
of land included in specific and well-defined boundaries, but 


13 


adding, as a part of the description, the quantity that was 
embraced in them.” ****** 

“ From this decree, the United States appealed to the 
District Court. In that Court, the appellee confessed that 
the decree of the Commissioners was erroneous, because it 
did not describe, in a manner sufficiently certain, the boun¬ 
daries of the tract of land intended to be confirmed to the 
claimant, and consented that the decision should be reversed, 
and such decree be entered in the District Court, as might be 
lawful and proper upon the whole evidence. 

u The claimant proceeded to examine a number of wit¬ 
nesses to identify the locative calls of the grant to Larios, 
and produced documentary evidence fron\ the archives, dis¬ 
closing the circumstances under which the grant was asked 
for and obtained, in order to determine with exactness the 
subject on which it was designed to operate. He also pro¬ 
cured a survey from the Surveyor General of California, to 
exhibit the extent and description of the land included in 
the claims of those who now represent the rights of Larios. 

“Much counter-evidence, was adduced under the direction 
of private and adversary claimants to whom the Law officers 
of the Government of the United States in California seem to 
have permitted the preparation of the case on the appeal to 
the District Court , and who were allowed to maintain , in the 
name of the United States , the alternative of the issue ten¬ 
dered by the claimants 

u The District Court confirmed the claim of the appellee 
to land limited by specific boundaries, as they exist on the 
land with precision. Under this decree the grant to Larios 


14 


included seven thousand five hundred and eighty-eight T Vo 
acres.” 

“ It is the opinion of the Court, that the interven¬ 
tion OF ADVERSARY CLAIMANTS IN THE SUIT OF A PETITION, 
UNDER THE ACT OF THE 3d OF MARCH, 1851, FOR THE CON¬ 
FIRMATION OF HIS CLAIM TO LAND IN CALIFORNIA, IS A 

practice not TO be encouraged. The Board of Commis¬ 
sioners was instituted by Congress to obtain a prompt deci¬ 
sion on the validity of private land claims, to enable the 
Government to distinguish the public land from that which 
has been severed from the public domain by Mexico—and 
that it might fulfil the obligation, it assumed, at the time of 
the cession of California, to secure and protect the property 
of its inhabitants. ******* 

“ The language and policy of these enactments limit a 
controversy like the present, to the United States and the 
claimant.” 

“We concur in the opinion of the Board of Commis¬ 
sioners and the District Court, that affirms the 
validity of the grant of the Governor of California 
TO JUSTO Darios, AND THE REGULARITY OF THE CONVEY¬ 
ANCES THROUGH WHICH THE CLAIMANT DEDUCES HIS 
* * ****** 

“ The southern, western, and eastern boundaries of the 
land granted to Larios are well defined, and the objects 
exist by which these limits can be ascertained. There is 
no call in the grant for a northern boundary, nor is there any 
reference to the diseno for any natural object or other 
descriptive call to ascertain it. The grant itself furnishes 
no other criterion for determining that boundary, than the 


15 


limitation of the quantity , as is expressed in the third 
condition.” * * * * * * * 

u The obligation of the United States to this grantee, will 
be fulfilled by the performance of the executive acts 
which are devolved in the grant in the local authority, and 
which are declared in the two conditions before cited. We 
regard these conditions to contain a description of the thing 
granted, and in connection with the other calls of the grant, 
they enable us to define it. We reject the words ‘a little 
more or less,’ as having no meaning in a system of location 
and survey like that of the United States, and that the 
claim of the grantee is valid for the quantity clearly ex¬ 
pressed.” * * ****** 

“ The grant to Larios is for one league of land to be taken 
within the southern, western, and eastern boundaries desig¬ 
nated therein, and which is to be located at the selection of 
the grantee or his assigns, under the restrictions established 
for the location and survey of private land-claims in Cali¬ 
fornia, by the Executive Department of this Government. 
The external boundaries designated in the grant may be 
declared by the District Court from the evidence on file, and 
such other evidence as may be produced before it; and the 
claim of an interest equal to three-fourths of the land granted , is 
confirmed to the appellee .” 

u The decree of the District Court is reversed, and the 
cause is remanded to that Court, with directions to enter a 
decree conforming to this opiniony 

On the return of the mandate and opinion of the SujDreme 
Court to the District Court of California, that Court proceeded 
to re-examine the evidences on file, and to hear such other 


16 


evidence as was produced before it, for the purpose of des]g 
nating and declaring the external boundaries in the grant, 
as directed by the Supreme Court, and after a rehearing of 
the counsel of the respective parties, a final decree was made 
in the District Court, on the 18th October, 1858, whereby 
the boundary lines were designated, giving the “well de¬ 
fined” southern, western, and eastern boundaries, and run¬ 
ning as far north, as to “include three-fourths of one square 
league of land, and no more, and the said lines so run are de¬ 
clared to he the boundary lines of the land hereby confirmed to 
the said appellee , Charles Fossat .” 

It is not perceived how this decree can properly be dis¬ 
turbed, or that it is the proper subject of a new appeal, as it 
is rather the decree of the Supreme Court who gave their 
directions to enter a decree conforming to their opinion. 

If this decree be not reversed, then, by the terms of the 
statute, “ a patent shall issue ” to the claimant, on his pre¬ 
senting to the General Land Office an authentic certificate 
of such confirmation, and a plat and survey, &c., &c. 

You have already been furnished with exemplified copies 
of the deeds from Fossat to Henry Laurencel and James 
Eldredge, severally, each for an undivided half of all the in¬ 
terest and claim of Fossat, which are duly recorded in Santa 
Clara County, and with the opinion of counsel as to the 
validity of their title. 


$ 


17 

l 

THE CASTILLERO CLAIM. 

On the 30th September, 1852, a petition was presented to 
the Board of Commissioners in the name of Andreas Gastil - 
lero , signed by Halleck, Peachy & Billings, as his attorneys, 
in which the petitioner claimed, that in the year 1845, he had 
discovered a mine of cinnabar in Santa Clara County, and 
having formed a company for working said mine, he, on the 
22d day of November, and 3d December, 1845, received from 
the magistrate of that jurisdiction the juridical possession of 
said mine and land to the extent of 3,000 varas in all direc¬ 
tions : 

That the record of testimony of his mining possessions 
was soon after submitted to the highest mining tribunal in 
Mexico (naming it), who, on the 14th May, 1846, declared 
said juridical possession, although embracing an unusually 
large extent of land, to be in accordance with law, and re¬ 
commended to the executive power of the Republic, through 
the minister of justice, uot only that the mining possession 
of 3,000 varas in all directions be confirmed, but that the exe¬ 
cutive should also grant in fee to said Castilieros for the 
benefit of his mine two square leagues of land on the surface 
of this mining possession: 

That, on the 20th May, 1846, the Minister of Justice replied 
to the President of the 11 Junta de Mineria ” that the Presi¬ 
dent of the Republic had acceded to the recommendations, 
and granted the land : 

That, on the 23d day of May, 1846, the Minister of Exte¬ 
rior relations issued his order to the Governor of California? 
notifying him of the grant to Castillero, and directing the 


2 


18 


said Governor to put Castillero in possession of the two 
square leagues: 

That Castillero immediately started for California for the 
purpose of measuring off and taking the juridical possession 
of the land, but was prevented from so doing , and interrupted 
in his journey by the operations of the war, which was then 
commenced between the United States and Mexico: 

That, in the latter part of the year 1847, or the beginning 
of the year 1848, and as soon as the operations of the war 
between the two nations would permit , he procured a survey 
of the land so granted, and marked out its boundaries, and 
he submits notes of survey, dated 7th March, 1848 : 

That the said tract of land has not been surveyed by the 
Surveyor General of the United States, but that the land 
within the boundaries has been occupied by Castillero, his 
agents, and those claiming under him, since the year 1845, 
by juridical authority, and since the month of May, 1846, by 
virtue of a title in fee : 

That by the working of the mine from its denouncement , 
as aforesaid, he acquired, by the laws of Mexico, a perfect 
title to the minerals of said mine, and a perfect right to use 
the land for mining purposes, even if he had no title in fee 
in the land itself, but that such title in fee was conveyed to 
him by the grant of 20th May, 1846. 

The claimants and the United States proceeded to take tes¬ 
timony before the Board of Commissioners, and after the 
testimony was closed, the case was submitted on briefs; and, 
on the 8th of January, 1856, a decree was made by the 
Board, that the claim of the petitioner to the mine , together 
with the right of enjoying the privileges as mine-owner, un- 


19 


der the Mexican law, within the space, as pertenencia , of 3000 
varas in all directions from the month of the mine, as origin¬ 
ally opened by Castillero, is valid, and is, therefore, confirmed 
to him; and as to all other rights, property, and interests 
claimed in the petition, that the same is not valid, and the 
same is, therefore, rejected. 

The Board of Commissioners were unanimous in their 
opinion, that the acting President Paredes (even if he ever 
had power to make grants, which they did not decide) never 
assumed to make a grant to Castillero, but that the documents 
clearly showed that he regarded the Government of Califor¬ 
nia as the proper authority to investigate the case, and to 
issue a grant if the claimant entitled himself to it, agreeably to 
the colonization laws, and therefore, that the claim for the land 
must be rejected. As to the claim for the mine, Commissioner 
Thompson delivered an elaborate opinion, in which he takes 
the ground,that Congress had not conferred jurisdiction upon 
the Board to pass upon any such claim, and for this and 
other reasons stated, he dissents from the opinion of the 
Board, so far as it confirmed the claimants’ right to the mine 
and its appurtenances, but concurred in that part of their 
opinion which rejects the claim for the two leagues of land. 

In the following March and April, Castillero appealed 
from so much of the decree of the Board as rejected his 
claim for the two leagues of land, and the United States, by 
C. Cushing, Attorney General, appealed from that part of 
the decree that adjudged the claim to the mine valid. 

On the hearing before the Board of Commissioners, I do 
not find that any question was raised as to the genuineness 
of the documentary evidence of title under which Castillero 


20 


claimed, and his claim to the land was rejected on other 
grounds. 

O 

If the papers, purporting to be authenticated copies from 
the public records of Mexico, were fictitious and fraudulent, 
and yet in such an imposing form that the fraud escaped the 
vigilant and experienced eyes of the Commissioners and the 
District Attorney, they might well deceive the very astute, 
but confiding, counsel of Messrs. Bolton, Barron & Co., who 
now declare and publish their opinion that the titles pro¬ 
duced are “ unquestionably genuine.’’ Although this opin¬ 
ion comes from an acknowledged eminent source, and whose 
opinions upon matters of law are well worth the very high 
prices they always command, yet, upon matters of fact , their 
willing belief in facts of which they have no personal knowl¬ 
edge, and which it is indispensable to their client’s success 
should be maintained, does not carry such high credence that 
I am not left at liberty, with all possible respect for them, to 
oppose- it, not with my own, but with the more weighty and 
more impartial opinion of the Court. 

In the progress of the trial of the appeal in the District 
Court, in the Castillero case, and as late as December, 1857, 
James Alexander Forbes was called and examined as a wit¬ 
ness in behalf of the United States. 

He testified, that from 1846 to 1857, he and Barron, 
Forbes & Co. (of which Alexander Forbes was a member) 
were, or claimed to be, partners of the Almaden Mine. 
A box was produced in Court, by another witness, under a 
subpoena duces tecum , containing a correspondence between 
James A. Forbes (the witness) and Alexander Forbes—Bar¬ 
ron, Forbes & Co.—and the letters were shown to the witness, 
by whom they were identified, and who testified to the genu- 


21 


ineness of the signatures of the letters addressed to him by 
Alexander Forbes, and Barron, Forbes & Co., and to the 
copies of letters written by himself to them, and which he 
swore were dispatched and delivered at the time they bore 
date. 

This correspondence is published in full with the evidence 
in the Castillero case, and in the Equity Suit in the United 
States Circuit Court, of which I shall hereafter speak; but 
as the letters occupy about 25 printed pages, they are too 
long for republication here, and I shall be content with the 
summing up of the Court, as to what they are supposed to 
prove in relation to the alleged conspiracy in getting up a 
fraudulent title under fictitious Mexican Grants. 

After this most extraordinary and startling disclosure, 
which has created such a great sensation throughout Cali¬ 
fornia and elsewhere, a bill in equity was filed by P. Della 
Torre, the United States District Attorney, and to which the 
names of Edmund Randolph and Edwin M. Stanton appear 
as counsel for the United States, in the United States Circuit 
Court for the Northern District of California, in favor of the 
United States against James R. Bolton, William E. Barron 
and others, defendants, for the purpose of obtaining an 
injunction to restrain them, pending the proceedings in the 
District ‘Court, from all their mining operations, or taking 
away the ore or quicksilver from these lands. 

In this bill the annual value of the ore and minerals of 
the mine is estimated at over one million of dollars, and the 
value of the quicksilver, daily converted, over three thou¬ 
sand dollars per day. The bill charges, that the pretended 
denouncement and registry of the mine, by Castillero, was, by 


22 


the Mexican laws and ordinances, null and void ; that if the 
pretended expediente of the denouncement and possession 
set up, were true and genuine, yet the proceedings of the 
Magistrate were invalid; but they charge that the alleged 
proceedings were never had ; and that the pretended expe¬ 
diente, and that the writings set forth in the petition of Cas- 
tillero, and the paper purporting to be the record, are ante 
dated and forged. 

And the like charge is made with respect to all the evi¬ 
dences of title and other documents produced in relation to 
Castillero’s claim to the land and mine; and it is alleged 
that they have all been fraudulently fabricated with intent 
to cheat and defraud the United States out of the land and 
mine. 

The Plaintiffs deny, also, that Castillero or his agents 
were ever in possession of any part of the land or mine 
before 21st January, 1848. That at the declaration of war, 
13th May, 1846, and long afterwards, Castillero was an alien 
enemy, an officer in the military service of Mexico, and 
neither he nor the defendants have any title. 

The bill then proceeds to set out the details of the fraudu¬ 
lent conspiracy, and sets forth and attaches to the bill, as 
exhibits, the correspondence, &c., which are above alluded 
to, as disclosed on the trial of the appeal in the District 
Court, &c., and they require Defendants to answer under 
oath. 

The defendants appeared and answered, and the motion 
for an injunction upon the bill, and answer was argued, in 
the United States Circuit Court, before Hon. M. Hall 
McAllister, Circuit Judge, and Hon. Ogden Hoffman, 


23 


District Judge-; and the 29th October, 1858, the Court 
granted an injunction restraining the defendants and all per¬ 
sons under them, from all their mining operations, or from 
extracting quicksilver from the ore already mined, or from 
removing it. 

Elaborate opinions were delivered by each of the Judges, 
occupying, in all, 73 printed pages. The details of the facts 
appear more particularly in the opinion of Judge Hoffman, 
but both Judges agreed in the result. 

I only give the results or summing up of the Court as to 
the facts, and have to regret that the correspondence, and 
even the extracts of all that is material in them, would 
occupy too much space for my limits. But, I will, neverthe¬ 
less, see that you are furnished with printed copies which 
will enable you to judge for yourselves how far the Court 
are justified in drawing the unfavorable conclusions against 
the Defendants, and the whole Castillero claim. 

The following are extracts from the opinion of the Court: 

“ Whether documents alleged to exist in the archives of 
Mexico can be regarded by the Court, if unauthenticated by 
the political power of that country, and also under its great 
seal, it is not necessary now to decide. But, as they have 
been obtained since the visit of Mr. Barron and Castillero to 
Mexico; and, as the last injunction of James Alexander Forbes 
to Alexander Forbes was to have the documents, referred 
to by him, “of the proper dates and placed in the proper 
governmental custody in Mexico we are at least justified 
in regarding such documents with suspicion, unless authentic 
cated in the most satisfactory manner. But, especially, should 
we call for such proof, when we remember that the ■ docu* 


24 


ments purported to be a grant of land in California, dated 
May 23d, 1846, and that the Mexican Government, in the 
original treaty of peace with the United States, declared, in 
the 10 article, “ That no grants whatever of lands, in any of 
the Territories ceded to the United States, had been made 
since the 13th day of May, 1846.” ****** * 

“ The evidence considered has been chiefly that afforded 
by a correspondence, admitted , with the exception of one letter 
to he genuine , and that relating to the production of the 
expediente of the mine, in great part presented by the defend¬ 
ants themselves.” ******* 

“ The results of the examination may briefly be recapitu¬ 
lated as follows: 

“ It appears from the letters of the defendants, or those 
under whom they claim, that, in the years 1847, 1848, 1849, 
and 1850, plans were discussed, and the design was enter¬ 
tained to procure documents from Mexico ; the dates of 
which were to be ‘ arranged' by Castillero, and which 
were to be ‘ placed in the proper Governmental custody in 
Mexico and certified copies of which were to be sent on : 

“That, in March, 1850, Mr. Barron and Castillero pro¬ 
ceeded to Mexico ‘ to attend to what had been recommended 
by James Alexander Forbes 

‘‘That documents have since been produced ‘ from the prop¬ 
er governmental custody in Mexico,’ which are claimed to be 
a grant of two leagues of land, and ratification of the mining 
possession: 

“That these documents are not attested by the great seal of 
Mexico, or officially authenticated or recognized as genuine 
by the Political power of that country : 


25 


“ That they are dated subsequently to the 13th of May, 
1846, and that the Mexican Commissioners solemnly and re¬ 
peatedly declared to the Government of the United States, 
that no grants whatever of lands had been made in the 
Territory of California since that date : 

u That in December, 1849, two documents of nearly simi¬ 
lar import appear to have been in existence, both of which 
could not have been genuine : 

“ That the original of one of them, which was deposited 
in Monterey, has disappeared, while the other is authen¬ 
ticated by the certificate of a notary obtained, as it recites, 
at the instance of some of the defendants, nearly every state¬ 
ment of which is untrue: 

“ That the expediente of the mine, originally produced, 
and which was by Alexander Forbes procured to be certi¬ 
fied by Weekes to be a ‘faithful copy to the letter’ of the 
expediente on file in his office, is not a copy of the docu¬ 
ment since produced from that office : 

“ That this last document was not discovered until 1851, 
and, up to that time, its existence seems to have been un¬ 
known to those of the defendants who were most likely to 
have known of it, and to their agents and attorneys : 

“ That no measurement of the land alleged to have been 
granted by the Alcalde, or denunciations of its boundaries, 
was effected during the continuance of the Mexican authority 
in this country, but the possession of the mine itself, which 
had been kept up with occasional interruptions by Indian 
workmen, was transferred , after the occupation of the country , 
to the British Vice Consul , in order to place it under cover of 
the protection of the English Government: 


26 


“ That the first formal possession by metes and bounds of the 
tract now held by defendants was taken long after the occupation 
of California by the American forces , and after the title of the 
United States had accrued: 

“ That at the time the possession was taken, the existence 
of valuable ores on the land was studiously concealed, and 
that two leagues of land were subsequently taken posses¬ 
sion of and inclosed by the defendants without any authority 
whatever : ” 


Here I may now recur again in reference to what is here 
disclosed, to what I have heretofore quoted from the Report 
of the Hon. Thomas Ewing, about the “recent grants of a 
questionable character,” and that “but a part of the public 
records were in the possession, or within the knowledge of 
the proper authorities,” and that “since the United States 
took posession of the country, an attempt has been made 
to acquire title to the mines by denouncement, and that this 
proceeding is invalid.” 

And he further says, in another official document, “It is 
understood that there are large grants, &c.. which purport to 
have emanated just prior to the occupation of the terri¬ 
tory by the United States, which are probably fictitious , and 
entitled to a later date . 

The tenth article of the treaty referred to by Judge Hoff¬ 
man, was stricken out by the Senate, on the ground, as stated 
by Col. Benton, “that they were afraid the guarantee would 
cover some inequitable claims of an earlier date than 13th 
May, 1846.” When the treaty went back to Mexico for their 
ratification, and came up for consideration, the Commission- 


27 


ers, on tlie part of the United States, Mr. Clifford, now asso¬ 
ciate justice of the Supreme Court of the United States, and 
Mr. Sevier, of Arkansas, and the minister of relations repre¬ 
senting the Mexican Republic, agreed upon the following 
explanatory protocol, which was exacted on the part of 
Mexico. 

u These concessions, notwithstanding the suppression of 
the article of the treaty, shall preserve the value which they 
may have in law, and the grantees may avail themselves of 
their lawful title, before the American tribunal. 1 ’ 

“ According to the law of the United States, there are law¬ 
ful titles to property of every kind, movable or immovable, 
existing in the ceded territories, which may have been law¬ 
ful titles under the Mexican law up to the 13 th of May 1846.” 

This, of course, would exclude the pretended grant to Cas- 
tillero, of 23d May, 1846, of which the Mexican authorities 
seemed to have no knowledge, or, at any rate, did not recog¬ 
nize. 

There is another consideration entitled to weight in this 
connection. 

As has already been seen, and as the Supreme Court of the 
United States have adjudged, after hearing all the counter 
evidence, and the able arguments on the part of the claimants 
under Castillero, Fossat produced satisfactory evidence of a 
grant from the Governor of California, bearing date in 1842, 
to Justo Larios, the validity of which the Court have affirmed. 
Is it not a fair presumption, that the legitimate authorities of 
Mexico would not, and particularly after the 18th May, 
1846, have granted the same lands to Castillero ? 

And if the grant to Justo Larios, of 1842, is admitted, or 


28 


has been affirmed by the Supreme Court, it cannot be denied 
that the pretended grent to Castillero, of 1846, four years 
later, even if its authenticity were admitted, would be entirely 
unavailing against the Fossat title under the prior grant 
to Larios, “the regularity of the conveyances through which 
the claimant deduces his title” being also affirmed by the 
Supreme Court. 

I have thus considered, as fully as I could in this limited 
space, the relative claims of the Fossat and Larios title, and 
of the Castillero claim. 

I have endeavored to state them intelligibly, and, I hope, 
fairly. 

The claim of Fossat to the land has been confirmed by the 
Board of Commissioners, by the District Court, and, finally, 
by the Supreme Court of the United States. When the 
patent to which he is entitled by law shall issue, the title to 
the mine will be vested in him and those claiming under 
him. 

The claim of Castilleros to the land has been rejected by 
the Board of Commissioners, and is now before the District 
Court on appeal. The chances of success in that Court may 
bejc^njectured from the opinion of Judge Hoffman, the Dis¬ 
trict Judge, from which I have quoted. If the claim was 
rejected by the Board, who received the Documentary Evi¬ 
dence as authentic, but not sufficient to give him a title, 
what can Castillero hope from the District Court after this 
disastrous and, I may say, fatal disclosure of the fraud ! 

This title to the Mine the act of Congress never submitted 
to the Board of Commissioners ; and it is claimed by the 
United States, until they shall have issued a patent or grant 


29 


from the United States, or until he shall establish his Mexican 
grant for the land. 

The counsel for Messrs. Bolton, Barron k Co. have not in 
any way alluded, in their communication, to the Larios or 
Fossat title.. They were certainly not ignorant of it, as two 
of them were “ of counsel for the United States,’ 7 ' and attended 
before the Supreme Court to argue the case. It would have 
given more value to their opinions if they had shown some 
satisfactory or even plausible answer to the opinion and 
judgment of the Supreme Court in the Fossat case. 

If they could give none, it was most wise certainly to 
make no allusion to it. 

I am, with great respect, your obedient servant, 

JOHN A. COLLIER. 

Binghamton, 18th February,. 1859. 

































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